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As noted on numerous occasions in this BLOG, the New York State Legislature has responded to the residential foreclosure crisis by promulgating a series of rules designed to protect residential homeowners.  These rules, however, place additional burdens on foreclosing lenders and courts throughout New York State have demonstrated little sympathy for foreclosing lenders that fail to follow these rules. For example, RPAPL 1304 requires that at least ninety days prior to commen

In today’s post we examine, SHIR Capital, LLC v. Fortress Credit Advisors LLC , 2020 N.Y. Slip Op. 31825(U) (Sup. Ct., N.Y. County June 11, 2020) ( here ), a case involving an alleged fraud, breach of fiduciary duty, and misappropriation of trade secrets.  We chose to SHIR Capital because of its common theme – pleading with particularity. As discussed below, pleading fraud, breach of fiduciary duty and the misappropriation of trade secrets requires particularity or specifici

What law should apply? In most cases, answering the question is more art than science.  In contract cases, especially in complex commercial matters, the agreement at issue often (though not always) contains a choice of law provision. In that circumstance, the agreement will provide that any disputes related to the contract and/or its performance will be litigated under the laws of the jurisdiction identified in the contract. When there is no choice of law provision, a more co

In prior posts, we examined Securities and Exchange Commission (“SEC” or “Commission”)   enforcement actions brought against those who seek to personally benefit from the COVID-19 health crisis affecting the country ( here and here ). These actions had a common thread between them – they involved pump and dump schemes. In a “pump-and-dump” scheme, promoters “pump” up, or increase, the stock price of a company by spreading positive, but often false, rumors.  These rumors caus

Pleading fraud with particularity is not easy. Sometimes the information needed to satisfy the requirement is peculiarly within the knowledge of the defendant. Other times, the information needed is found in lawsuits, publicly available information and media. Regardless of where the information can be found, the plaintiff must nevertheless provide sufficient facts to support a “reasonable inference” that the allegations of fraud are true.  Eurycleia Partners, LP v. Seward & K

As readers of this Blog know, one of the elements of a fraud claim is reliance. In the typical case, the defendant makes a false or misleading statement directly to the plaintiff, which the plaintiff claims to rely on. In the less frequent case, the misrepresentation of fact is made to a third party that relied on the alleged fraudulent statement. The question is whether, in that circumstance, a plaintiff can state a fraud cause of action, despite the absence of direct relian

On December 31, 2018, this Blog posted an article, titled “Court Dismisses Complaint Charging Misappropriation of Intellectual Property on Summary Judgment.” ( Here .) The case that we examined in that article, Hyperlync Techs., Inc. v. Verizon Sourcing LLC , 2018 N.Y. Slip Op. 33123(U) (Sup. Ct., N.Y. County Dec. 5, 2018) (here), involved allegations that the defendant, Verizon Sourcing, LLC (“Verizon”), disclosed confidential information to Synchronoss Technologies, Inc. (“

It has been a long time since this Blog examined a request for a pre-judgment order of attachment. ( See here .) Today, we take another look at this provisional remedy. What is Prejudgment Attachment?  Prejudgment attachment is a provisional remedy that provides a plaintiff with a statutory mechanism by which he/she can secure a defendant’s assets during the pendency of a lawsuit. In effect, an order of attachment is a lien against the defendant’s property. As such, a prejudg

It is an accepted principal of contract interpretation that “when parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms.”  Vermont Teddy Bear Co. v. 538 Madison Realty Co. , 1 N.Y.3d 470 475 (2004) (quoting W.W.W. Assoc. v. Giancontieri , 77 N.Y.2d 157, 162 (1990)) (ellipses omitted).  Such a rule “imparts stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesse